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Until we legalize marijuana, reduce arrests

Last week, the Editorial Board of the New York Times called for the federal government to repeal its ban on marijuana. Marijuana legalization would be a strong step towards reducing the impact of the drug war, especially on communities of color. But, as coverage by the New York Times may be missing, legalization is a small – and slowly moving – step towards ending mass incarceration. Reducing arrests in California can do more to impact mass incarceration now.

Federal legalization of marijuana will be a slow, perhaps decades-long, process. In the meantime, we should not get caught up in the excitement of what might be, and forget about the casualties of continuing criminal penalties for illegal drug use and possession. In 2012, there were 79,270 misdemeanor drug arrests in California, and 120,995 felony drug offense arrests. Of the individuals arrested for misdemeanor drug offenses, 30,067 were Hispanic, and 8,433 were Black.

It has long been acknowledged that who is arrested often depends less on who is actually committing a crime, than on deeply entrenched beliefs about who commits crimes and who deserves punishment. Nowhere is this more apparent than with drug offenses. And yet, perhaps more than any other tool in the criminal system, arrests disregard the social context in which they occur. There is no time to consider complex sociological questions about why crimes are committed, or what the impact of arrest will be on a person’s community.

An interim strategy of challenging arrest practices can reduce these numbers. This could start with asking state legislatures to take arrest or incarceration off the table for all misdemeanor drug offenses, and replacing criminal penalties with infractions. Police officers could be trained on alternative responses to offenses that we, as a society, have decided should not be paid for in arrest, incarceration, or a criminal record.

In California, this has already made a difference in the number of arrests for misdemeanor marijuana possession. In 2010, there were 54,849 misdemeanor marijuana arrests. After the state made possession of under an ounce of marijuana an infraction, that number plummeted – to 7,768 in 2011. Felony marijuana arrests remained high – at 13,434 in 2012.

Other states are also taking an aggressive approach to reducing incarceration and arrests for drug crimes. Washington state’s Law Enforcement Assisted Diversion (“LEAD”) program, launched in 2011 and designed by a coalition of law enforcement, district attorneys, public defenders, and community members, diverts people with low-level drug and prostitution offenses into community-based services after arrest, but before booking. The Vera Institute of Justice recently found that, in 2013, six states enacted or strengthened pretrial drug treatment diversion programs, 11 instituted or expanded access to “problem-solving” courts that rely less heavily on incarceration, and three codified graduated responses to violations of supervision conditions, including issuing written reprimands instead of immediate arrest or incarceration in one state.

California should reduce the impact of the War on Drugs, safely and quickly, by relying less on arrests and incarceration. Misdemeanor drug offenses are a good place to start. Eventually, we can shift more completely towards a public health approach to drug use and misuse, one that eschews entirely the criminal system. In the interim, treating simple drug use or possession as infractions would save the state millions of dollars in booking, court, and jail fees – money that could more profitably be invested in treatment, education, employment, and housing opportunities.